Australian Capital Territory

arrest on mesne process act 1902
(new south wales) 
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Reprinted as at 31 August 1992
TABLE OF PROVISIONS
Section
Part I—Preliminary
	1.	Short title
	3.	Interpretation
part II—Arrest and Bail
	4.	No arrest on mesne process except under this Act
	5.	Order to hold to bail
	6.	Issue of writ of capias
	7.	Execution of writ
	8.	Order and arrest to be during pendency of action
	9.	Defendant to remain in custody until bail bond given or deposit made
	10.	Subsequent proceedings subject to Rules of Court
Part III—Discharge
	11.	Application for order nisi for discharge
	12.	Proceedings upon order nisi
	13.	Appeal
	14.	Discharge on bankruptcy

AUSTRALIAN CAPITAL TERRITORY

arrest on mesne process act 1902
(new south wales)
An Act to consolidate the enactments relating to arrest on mesne process
Part I—Preliminary
Short title
1.  This Act may be cited as the Arrest on Mesne Process Act 1902.1
Interpretation
3.  In this Act, unless the context or subject-matter otherwise indicates or requires—
“Capias” means capias ad respondendum.
“Court” means the Supreme Court.
“Judge” means a Judge of the Court.
Part II—Arrest and Bail
No arrest on mesne process except under this Act
4.  No person shall be arrested upon mesne process in any civil action in any court except in the cases and in the manner hereinafter provided.
Order to hold to bail
5.  In any action in the Court, if a Judge is satisfied by affidavit disclosing the facts constituting the ground of the plaintiff’s claim, or by 
evidence on oath before such Judge, that the plaintiff has prima facie a good cause of action in respect of his claim against the defendant and is also satisfied by the affidavit of the plaintiff or some other person—
	(a)	that such cause of action is to the amount of $40 or upwards, or that the plaintiff has sustained damage to that amount;
	(b)	that any defendant is about to remove or is making preparations to remove out of the jurisdiction of the Court;
	(c)	that such action will be defeated unless such defendant is forthwith apprehended; and
	(d)	that the application is made within a reasonable time after the fact of the defendant’s intention so to remove came to the knowledge of the plaintiff or might have become known to him by reasonable diligence on his part,
such Judge may by a special order direct that such defendant shall be held to bail for such sum as such Judge thinks fit, not exceeding the amount of the debt or damages.
Issue of writ of capias
6.  (1)  Thereupon the plaintiff, within the time expressed in such order but not afterwards, may sue out one or more writ or writs of capias against such defendant.
(2)  Every such writ shall be in the form prescribed by the Rules of Court.
Execution of writ
7.  (1)  The sheriff of the Territory or other officer to whom any such writ is directed shall, before the return of the said writ but not afterwards, proceed to arrest such defendant thereupon.
(2)  Such writ may be lawfully executed upon a Sunday.
Order and arrest to be during pendency of action
8.  Such order may be made and the defendant arrested in pursuance thereof at any time after the commencement of the action and before final judgment is obtained therein.
Defendant to remain in custody until bail bond given or deposit made
9.  The defendant when arrested shall remain in custody until he has given a bail bond to the sheriff or other officer, or has made deposit of the sum endorsed on such writ of capias, together with $20 costs.
Subsequent proceedings subject to Rules of Court
10.  All subsequent proceedings as to putting in and perfecting special bail shall be subject to, and in accordance with, the practice and procedure of the Court.
Part III—Discharge
Application for order nisi for discharge
11.  Any person arrested upon a writ of capias may apply to a Judge at any time after such arrest for an order on the plaintiff to show cause why such person should not be discharged out of custody.
Proceedings upon order nisi
12.  Any Judge may make absolute or discharge such order, and may direct the costs of the application to be paid by either party, and may make such other order therein as he thinks fit.
Appeal
13.  Upon the application of either party dissatisfied with any such order, the Court may discharge or vary the same.
Discharge on bankruptcy
14.  (1)  Any person in the custody of any sheriff, gaoler, or officer under any such writ shall upon the sequestration of his estate in pursuance of the law in force for the time being relating to bankruptcy, be entitled to his discharge from such custody on the order of a Judge of a court exercising jurisdiction in bankruptcy, and shall be forthwith discharged from such custody either absolutely or on such conditions as the said Judge may impose.
(2)  No such sheriff, gaoler, or officer shall incur any liability in respect of such discharge to any person for anything done by him under this section.

NOTE
1.	The Arrest on Mesne Process Act 1902 of the State of New South Wales (No. 24, 1902) as shown in this reprint was one of the laws in force in the Australian Capital Territory before 1 January 1911 and was therefore continued in force by the Seat of Government Acceptance Act 1909 of the Commonwealth.

	The text of the Arrest on Mesne Process Act 1902 of the State of New South Wales in its application in the Territory as at 10 August 1984 comprises Part 4 of Schedule 2 to the New South Wales Acts Application Act 1984 (No. 41, 1984) as amended, details of those amendments are as follows:
	Section 2 and the Schedule and Part IV (ss. 15-35) were repealed by the New South Wales Acts Application Act 1984.
	Citation of Laws—The Self-Government (Citation of Laws) Act 1989 (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts.  That Act also affects references in ACT laws to Commonwealth Acts.

Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

					

Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected